In your letter of August 12, 1971, you posea number of questions relating to oathadministered by notaries public, andthe use of the phrase, "So help me God."

The common law is that an oath is anacknowledgement or pledge by a person boundby his or her accountability to God or by hisconscience to the Supreme Being that what heor she is averring is true.

See cases cited inBlack's Law Dictionary, 4th ed.

On the other hand, an affirmation is asolemn declaration of truthfulness without anappeal for divine guidance.

Again, see Black's Law Dictionary, 4th ed.

Wisconsin recognizes this distinction.

Section 887.03, Stats., provides:

887.03 Oath, how taken.

Any oath or affidavit required or authorized by law may be taken in any of the usual forms, and every person swearing, affirming or declaring in any such form shall be deemed to have been lawfully sworn.

Section 887.04, Stats., reads:

887.04 Affirmations.

887.04(1)

Every person who shall declare that he has conscientious scruples against taking the oath, or swearing in the usual form, shall make his solemn declaration or affirmation, which may be in the following form: Do you solemnly, sincerely and truly declare and affirm that the testimony you shall give in [here indicate the action, proceeding or matter on trial or being inquired into] shall be the truth, the whole truth and nothing but the truth; and this you do under the pains and penalties of perjury.

The assent to the affirmation by the person making it may be manifested by the uplifted hand.

In considering these two statutoryprovisions, we must also read Section990.01(24), Stats., which provides:

990.01(24) Oath.

"Oath" includes affirmation in all cases where by law an affirmation may be substituted for an oath.

If any oath or affirmation is required to betaken such oath or affirmation shall be takenbefore and administered by some officerauthorized by the laws of this state toadminister oaths, at the place where the sameis required to be taken or administered,unless otherwise expressly directed, and,when necessary, duly certified by suchofficer.

If an oath is administered it shall endwith the words "so help me God."

In many places in the statutes thelegislature uses the term "oath"when it is obvious that it meantto mean "oath or affirmation."

For example, in Chapter 6,entitled, "The Electors," the legislatureuses "oath," "swear," and "affirm" (orvariants) interchangeably.

We may summarize, as follows: When a notarypublic administers an oath, the words, "Sohelp me God" must be utilized, unless someother form of oath is set forth in orotherwise clearly allowed be theparticular statute involved.

This is in conformity withSection 887.03, Stats.

If the deponent or declarer asserts"conscientious scruples against takingthe oath" then, and only then, the notarypublic may "swear" the deponent or declarerin affirmation form as provided in Section887.04, Stats.

However, by virtue of Sections 887.03 and990.01(24), Stats., an affirmation hasthe same legal effect as does an oath.

Therefore, the jurat, "subscribed and sworn,"will embrace either the oath or affirmationsituation.

The jurat need not specify whether thewords, "So help me God" were utilized sinceit will be presumed that the notary publicadministered the oath in accordance with law.

I note that Section 137.01(5), Stats.,setting forth the powers of notaries public,grants the power to "administer oaths."

While a very narrow construction of thissection might lead to the conclusion that anotary public does not have the power toadminister affirmations, in my opinion,this would not be a reasonableinterpretation of this section.

It is incongruous that the legislature wouldempower notaries public to administer oathsand consciously withhold the power toadminister affirmations.